Surrender Is Not Consent For Sexual Intercourse: Kerala High Court

Only the sexual intercourse that is welcomed can be "construed as not violative of the rights of the victim, and accepted as consensual," the Kerala High Court recently commented while upholding the conviction of an accused in a rape case. The High Court further noted that sexual assault cases, including rape, are crimes of gender inequality and the element of “consent” is not adequate to determine whether a physical relationship “violates the rights of women consistent with gender equality.”

The judge, Justice P.B. Suresh Kumar, in his order on June 29, also quoted a judgment delivered in 1986 by the US Supreme Court that held “welcomeness and not consent, shall be the standard for sex that does not violate the rights of women consistent with gender equality”.

The Case

The court was hearing an appeal filed by a 67-year-old man against his conviction in the case by a trial court. The accused in the case was found guilty in the rape and impregnation of a minor girl belonging to a scheduled caste in 2009. The accused had filed an appeal saying that the evidence given by the girl would 'show beyond doubt that the sexual intercourse was consensual'. His lawyer also contended that the survivor has admitted that she used to go to the house of the accused as and when desired or required by the accused and had sex with him.

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The High Court in turn observed that the survivor has given categoric evidence that while she watched television one day, the accused took advantage of the situation and made sexual advances towards her. The court referred to the poor social background of the survivor. It was suggested by the name 'Thankappanachan' that she used to call the accused, that the accused was a fatherly figure to the girl, the court said. The survivor also testified that she did not disclose the incidents as she was afraid that the accused would harm her mother and sister.

The Court Statement

Dismissing the accused’s appeal, the court noted that “It is clear from the materials on record that the victim was under a social and psychological hierarchical threat. In a situation of this nature, according to me, the conduct on the part of the victim in surrendering before the accused as and when desired by him cannot be said to be unusual or abnormal and such surrender can never be construed as consensual acts of sexual intercourse.” The court also referred to the observation made on rape survivors by Judith Lewis Herman, an American psychiatrist and researcher on traumatic stress, in her book ‘Trauma and Recovery’ that when a person is completely powerless, and any form of resistance is futile, she may go into a state of surrender.

Also Read: Women Know How To Say ‘No’, Men Need to Listen And Respect

The Judge further noted that violence against women, including sexual assaults “are manifestations of historically unequal power relations between men and women," which has led to the domination of men over women.

“Sexual assaults including rape are therefore crimes of gender inequality,” he said.

Dyuti Gupta is an intern with SheThePeople.TV.